COURT FILE NO.: CR-18-30000039-0000

DATE: 20210611

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

VASANTHAN NAVARATHINAM

Rhianna Woodward

for the Crown

Sujith Sutharson and Rohan George

for the accused

HEARD: June 7 and 8, 2021

REASONS FOR SENTENCE

G. ROBERTS J.:

Overview

1Following a seven day trial, I found Vasanthan Navarathinam guilty of aggravated assault of Ajith Jesuthasan, and the related counts of assault with a weapon and possession of a weapon for a purpose dangerous. I was satisfied beyond a reasonable doubt that around 4 am on January 29, 2017, Mr. Navarathinam slashed Mr. Jesuthasan twice with a meat cleaver, causing a serious wound to Mr. Jesuthasan’s left cheek, and another serious wound to his head. Mr. Jesuthasan also had two other serious slash wounds to his head, but these occurred off camera, and I could not be satisfied beyond a reasonable doubt that Mr. Navarathinam caused them.

2Mr. Navarathinam did not testify at the trial, but he testified briefly at the sentencing, and defence counsel put a great deal of information before me about his background, including that he suffered PTSD as result of the civil war in Sri Lanka, and had been diagnosed with depression and alcohol abuse disorder in remission. Defence counsel argued that in light of the pre-trial custody, and strict conditions of release, sentence should be suspended and Mr. Navarathinam placed on probation.

3The Crown argued that the circumstances of both the offence and the offender placed the case in the most serious category of aggravated assault, and the appropriate sentence was in the range of 4 ½ to 5 years custody.

Circumstances of the Offence

4Mr. Navarathinam and Mr. Jesuthasan were friends. They shared a basement apartment for about 6 months in 2012. They re-connected in late 2016, when they discovered they were both living in the apartment building at 3400 Eglinton Avenue East.

5Mr. Jesuthasan arrived home at 3400 Eglinton Avenue East around midnight on January 28, 2017, after being out drinking. He went to his apartment on the 5th floor. He did not have a key, so knocked but no one let him in. He sat down in front of the door. Approximately 5 minutes later, Mr. Navarathinam arrived and angrily confronted Mr. Jesuthasan, hauling Mr. Jesuthasan to his feet, repeatedly wagging his finger in Mr. Jesuthasan’s face, and at one point slapping Mr. Jesuthasan across the face. Mr. Jesuthasan explained that Mr. Navarathinam was angry because Mr. Jesuthasan was unreachable after taking Logathas Shanmugalingam’s car earlier in the day and promising to fix it. This explanation did not make sense to me; all I can safely conclude is that the surveillance video shows that Mr. Navarathinam was extremely angry at Mr. Jesuthasan.

6Mr. Jesuthasan went with Mr. Navarathinam to Mr. Shanmugalingam’s apartment where they all drank together. Around 4 am, Mr. Jesuthasan was attacked in the apartment. Drops of his blood were found in the bathroom and on the floor next to a couch. Blood was smeared on the back of the couch, and spattered on the wall behind.

7Surveillance video shows Mr. Jesuthasan bolt out of the apartment, chased by Mr. Navarathinam carrying a meat cleaver. Mr. Shanmugalingam follows. Mr. Jesuthasan runs to the east end of the hall and up the stairs and back west along the length of the 8th floor. He then stops and turns and waits for Mr. Navarathinam. As soon as Mr. Navarathinam arrives, Mr. Navarathinam punches Mr. Jesuthasan to the ground. Mr. Jesuthasan puts his arms out in surrender and Mr. Jesuthasan slashes him twice with the meat cleaver, once to the head and once to the left side of his face. Mr. Shanmugalingam catches up to Mr. Navarathinam and they both stand over Mr. Jesuthasan and make threatening gestures towards him. Eventually they let Mr. Jesuthasan leave. Around 10 minutes later Mr. Jesuthasan makes his way back to the 5th floor and lies down in front of his apartment. About half an hour later he is discovered and police and ambulance are called and he is taken to hospital and treated.

8Mr. Jesuthasan suffered three cut or slash type wounds to his head, a cut or slash to his left cheek, and a cut to the back of his left wrist. He testified that the wounds on the top of his head were closed with staples, and the wound to his face was closed with stitches. As noted, I was only satisfied to the criminal standard that Mr. Navarathinam caused the wound to Mr. Jesuthasan’s face, and one of the wounds to his head. The wound to Mr. Jesuthasan’s face was a slash beginning in front of his left ear and running across his cheek. It was approximately 2” long and by the time it was photographed in hospital around 6:30 am on January 29, 2017 it had spread to about 3/4” wide.

Rule Against Multiple Convictions

9The rule against multiple convictions (the "Kineapple" principle) prevents an accused from being convicted of multiple offences arising from the same transaction where the elements of the offences are substantially the same, i.e. there is both a factual and legal nexus. In such cases the accused should only be convicted of the most serious offence, and the other offences should be conditionally stayed: R. v. Kienapple (1974), 1974 CanLII 14 (SCC), 15 C.C.C. (2d) 524 (S.C.C.); R. v. Prince (1986), 1986 CanLII 40 (SCC), 30 C.C.C. (3d) 35 (S.C.C.).

10The Crown submits that the finding of guilt for assault with a weapon should be stayed pursuant to the Kineapple principle. I agree. While the means of wounding is not particularized in the count of aggravated assault, I found that the aggravated assault involved a meat cleaver; the same meat cleaver that would form the basis of the assault with a weapon.

11The factual basis for the possession of a weapon for a purpose dangerous count is not entirely encompassed in the aggravated assault, and it will not be stayed. Mr. Navarathinam wielded the meat cleaver as a weapon, in addition to actually using it to wound Mr. Jesuthasan.

Circumstances of the Offender

12A PSR was prepared. In addition, defence counsel obtained psychiatric reports from two different psychiatrists: Dr. Julian Gojer and Dr. Rajasekar Basker. Mr. Navarathinam testified about his experience in custody and the effect of the conditions of his pre-trial release. In addition, Mr. George made eloquent submissions about Mr. Navarathinam’s life.

13Mr. Navarathinam is currently 43 years old. He was 39 years old at the time of the offence. He immigrated to Canada from Sri Lanka around 2004 when he was 27 or 28 years old (the reports are inconsistent). In Canada he worked mainly in the restaurant industry, progressing from dishwasher to cook. Before his work permit ended in 2015, and was not renewed, he earned a good income.

14Mr. Navarathinam has a criminal record which includes the following offences and sentences:

2014-03-14 assault 30 days intermit (8 days PSC), 2 yrs prob, 110 order 5 yrs

mischief suspended sent & 2 years probation

2014-03-14 assault 10 days intermit (18 days PSC), 2 yrs prob, 110 order 5 yrs

2014-07-30 FTC recog suspended sent (2 days PSC), 2 yrs prob

2014-09-03 ass weapon 90 days intermit, 18 months probation, 110 order 5 yrs

2018-03-05 FTC recog $80 fine (30 days PSC)

15Mr. George submitted that Mr. Navarathinam’s life can be divided into three periods: growing up in Sri Lanka during the civil war; his initial time in Canada from 2005 to 2016; and the period from the commission of the offence in 2017 to the present. I found this a helpful way to try and understand Mr. Navarathinam and how he came to commit the present offence.

16The PSR and the two psychiatric reports all describe some of the hardships of the civil war. Mr. Navarathinam’s family lived in an area heavily impacted by the war. They remained in the conflict zone for 12 years and were constantly uprooted and in fear. They regularly hid in the forest, sometimes for days at a time. Mr. Navarathinam was shot in the leg; his only sibling (a brother) disappeared and has never been heard from; he saw bodies in the street and witnessed atrocities.

17Mr. George explained that Mr. Navarathinam began working within a few months of arriving in Canada. The PSR and both psychiatric reports describe his employment history, and defence counsel has provided his tax returns (except for 2016). Mr. George noted that despite having no English fluency, no Canadian education, no strong social network, and plagued with an incessant alcohol dependence, Mr. Navarathinam was able to maintain consistent employment. In his prime he earned $44,000 per year.

18Mr. Navarathinam’s arrival in Canada as a Convention Refugee also coincided with the start of his alcohol use and addiction. Dr. Gojer notes that at his peak Mr. Navarathinam was consuming 1.5 litres of vodka daily. The PSR indicates he was spending $700/month on alcohol.

19Dr. Basker notes that the end of the Sri Lankan civil war in 2009 coincided with an increase in Mr. Navarathinam’s alcohol consumption. Dr. Basker, who has worked extensively with members of the Tamil diaspora, explained that the end of civil war in 2009 resulted in mass casualties of ethnic Tamils. The final days of the civil war were concentrated in areas where Mr. Navarathinam grew up, and members of his family and friends were killed. This exacerbated Mr. Navarathinam’s trio of mental health issues: intergenerational trauma; PTSD; and alcohol dependence. Mr. Navarathinam began a downward spiral which only increased over time. Mr. George eloquently summed this up as follows: an individual who had the resilience to survive the heart of a civil war, cross continents to start a new life, find meaningful employment and become a contributing tax-paying member of his new country was destroyed by alcohol dependence. I cannot put it better than Mr. George, and accept his characterization of this part of Mr. Navarathinam’s life as a tragedy.

20Mr. Navarathinam’s alcohol abuse was connected to physical violence, both as a victim and as a perpetrator. In 2011 Mr. Navarathinam was the victim of a vicious assault during which, among other things, his jaw was badly broken resulting in significant pain and complications which continued over the ensuing 5 years. Beginning in 2014, Mr. Navarathinam also began to accumulate a criminal record, outlined above, including for assault and assault with a weapon.

21One of the conditions of Mr. Navarathinam’s March 2014 probation order was to attend treatment for alcohol abuse. In 2016, he apparently reported to his probation officer that he had quit drinking. A treatment summary from 2016 indicates that Mr. Navarathinam was educated on relapse prevention, including “how to identify warning signs, high risk situations, and options to consider should he be at risk of a relapse.” Notwithstanding this treatment, Mr. Navarathinam drank with the victim in this case, during a time when the surveillance video shows him to be demonstrably very angry with the victim. Mr. Navarathinam’s account of the offence to Dr. Gojer confirms that he was angry with the victim on the evening of the attack, and took the victim to the home of the person Mr. Navarathinam believed had been harmed by the victim’s behavior. Mr. Navarathinam could not remember the attack itself. The victim testified that they all drank in Mr. Shanmugalingam’s apartment, and smoked marijuana. At one point, the surveillance video shows Mr. Navarathinam bring what appears to be beer into the apartment.

22The PSR writer also notes that Mr. Navarathinam was unable to recall the entire event as a result of his alcohol consumption. According to the PSR writer, Mr. Navarathinam acknowledged that he was told he hit someone, and stated “I don’t know if it is right or wrong….I was not in the right mind.” I note that Mr. Navarathinam was not merely told he hit someone. He was present in court when the surveillance video was played, over and over, showing him chase down the victim and repeatedly slash the victim in the head with a meat cleaver while the victim cowered in a submissive pose on the ground.

23Mr. Navarathinam was arrested on the morning of the attack, January 29, 2017, and initially held in custody. He claims he has not consumed any alcohol since that time. Mr. Navarathinam was eventually released from custody, initially on house arrest and then on a strict curfew. He appears to have done very well during this time. He has abstained from alcohol use and stayed out of trouble. Unfortunately, his work permit ended in December 2014, and he was not able to renew it, so he has been unable to work since 2015. On October 1, 2015 he was ordered deported due to serious criminality. Despite these difficult setbacks, Mr. Navarathinam seems to have finally gotten his alcoholism under control. Mr. George noted that it is difficult to prove this and pointed to the PSR and psychiatric reports which repeat that Mr. Navarathinam has not touched alcohol since this offence. I agree with Mr. George that the most compelling proof lies in the fact that Mr. Navarathinam has stayed out of trouble in the over four years since the offence. Mr. George also submits that this is a tangible expression of remorse (a concept which apparent does not translate easily into the Tamil language). He explained that the benefits that have accrued to Mr. Navarathinam through sobriety are a corollary of his remorse: Mr. Navarathinam did not seek sobriety for its own sake but to ensure that his heinous conduct was never repeated.

24Dr. Basker had Mr. Navarathinam complete the Level of Service Inventory-Revised (LSI-R), which is a tool used in the correctional system to assess the risk posed by an offender. Mr. Navarathinam scored 23 placing him in the “low-moderate risk category”. Dr. Basker noted that some of the criteria which elevated Mr. Navarathinam’s score were beyond his control, such as unemployment, lack of secondary education, and being a recipient of social assistance. When Dr. Basker considered Mr. Navarathinam’s 10-year history of work after arriving in Canada, he interpreted Mr. Navarathinam’s risk of recidivism as low.

Reference Letters

25Defence counsel provided me with a number of reference letters:

• A general reference letter dated November 3, 2014 from the President of “The Rushton”, Frank Pronesti, confirming that Mr. Navarathinam was employed full time, and was “a very strong and dependable worker” who was an important part of their team. Mr. Pronesti concluded “It is an honor to have him work for me”.

• An undated handwritten letter from Murugesu Puuanenthiran noting that Mr. Navarathinam had changed “since 2018” and was no longer drinking alcohol and no longer got angry and was “very calm and well behaved”.

• A letter dated Jan. 24, 2021 from Nesarajah Poorariasatkuna who has known Mr. Navarathinam for 8 years, noting Mr. Navarathinam “voluntarily spent his time assisting with some minor work [at] our temple”. The writer notes that Mr. Navarathinam’s offence was “quite unexpected” as he knew Mr. Navarathinam to be a “fine and responsible character”. The writer noted that Mr. Navarathinam has acknowledged a lack of judgment in the past and was committed to self-improvement.

• A letter dated December 22, 2020 from Ganendrah Sabapathipillai who has known Mr. Navarathinam for 5 years. It is almost identical to the previous letter, except for how the writer knew Mr. Navarathinam and for how long. Mr. Sabapathipillai notes that Mr. Navarathinam “voluntarily spent his time assisting with some minor tasks within my store” and “There was a robbery at my store around the year 2018, while the robbery was happening he remained calm and collected and decided that the best thing to do was to not aggravate the robbers in order to keep himself and my wife safe.”

• An undated letter from Sivasegaram Sanseevan, who notes that Mr. Navarathinam is a “close friend” and “cousin for many years”. Mr. Sanseevan notest that Mr. Navarthinam has proven to be a responsible character in this time and “is known for being a dedicated person and good citizen.” Mr. Sanseevan explained that Mr. Navarathinam’s offence “was quite unexpected”. Mr. Navarathinam was committed to “address personal issues at the heart of the matter”, namely depression and mental illness due to the trauma of the civil war in Sri Lanka.

Mr. Navarathinam’s testimony during the sentencing hearing

26Mr. Navarathinam explained that custody was very difficult for him because other inmates controlled the telephone and the showers, making life difficult for him. There were often three people assigned to his two-bed cell, and he had to sleep on the floor. He was also unable to participate in group programming because he does not speak English, nor is he Christian.

27While out of custody, Mr. Navarathinam has been confined to his home. He cannot work, and he does not go out. Although his release order was varied to permit him to be out of his home during the day if accompanied by his surety, he does not want to bother her, or get into trouble, so he has stayed home. He has been able to do some gardening.

Range of Sentence for Aggravated Assault

28Aggravated assault, contrary to s.268(2) of the Criminal Code, is punishable by a maximum sentence of imprisonment of 14 years. This is the second highest maximum sentence available, suggesting that aggravated assault is, or at least can be, a very serious offence: R. v. Friesen, 2020 SCC 9, paras.96-97. By virtue of s.742.1(c) and (e)(i) a conditional sentence is not available. Nor is it available by virtue of the use of a weapon (s.742.1(e)(iii)). The range of sentence for aggravated assault is so broad that the caselaw is more useful in setting out important circumstances or considerations in applying the principle of parity, than in setting out a range of sentence. In R. v. Tourville, (2011), ONSC 1677 at para.27 Justice Code summed up the key considerations, and associated range of sentence, as follows:

At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems….

In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, 2006 CanLII 9709 (ON SC), [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 2003 CanLII 15531 (ON CA), 175 C.C.C. (3d) 440 (Ont. C.A.)….

At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 2005 CanLII 23678 (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A). [emphasis added]

29More recently, in R. v. Seerattan, 2019 ONSC 4340, Justice Code confirmed the important considerations, and corresponding range of sentence, but clarified that the range is even wider than he previously described, with the bottom of the range including non-custodial sentence, and the top of the range including sentences of 8 years:

At the bottom end of the range are the most mitigated cases where intermittent sentences have been imposed. See, e.g.: R. v. Panchan (2013), 294 C.R.R. (2d) 92 (Ont. S.C.J.); R. v. Pulido, 2010 ONSC 3143 (Ont. S.C.J.); R. v. Bainbridge, 2016 ONSC 2119 (Ont. S.C.J.); R. v. Smart, [2013] O.J. No. 509 (Ont. S.C.J.). In exceptional cases, completely non-custodial sentences have been imposed and upheld. See, e.g.: R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.). In the mid-range of gravity, there are a large number of cases where high reformatory sentences have been imposed. See, e.g.: R. v. Tourville (2011), 2011 ONSC 1677, 93 W.C.B. (2d) 296 (Ont. S.C.J.) [2011 CarswellOnt 1897 (Ont. S.C.J.)]; R. v. Jones, 2013 ONCA 245 (Ont. C.A.); R. v. Pomanti, 2017 ONCA 48 (Ont. C.A.); R. v. MacDonald (2010), 2010 ONCA 178, 259 O.A.C. 308 (Ont. C.A.). Finally, in the most aggravated cases, at the high end of the range, sentences of four to eight years have been imposed. See, e.g. R. v. Haly, 2012 ONSC 2302, [2012] O.J. No. 1847 (Ont. S.C.J.); R. v. Scott, [2002] O.J. No. 1210 (Ont. C.A.); R. v. Thompson, [2005] O.J. No. 1033 (Ont. C.A.); R. v. Vickerson (2005), 2005 CanLII 23678 (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Khan (1991), 49 O.A.C. 42 (Ont. C.A.). [emphasis added]

30The Court of Appeal has repeatedly upheld Justice Code’s approach, as recently as last year: R. v. Jones, 2013 ONCA 245; R. v. Pomanti, 2017 ONCA 48; R. v. Randhawa, 2020 ONCA 668.

Principles of Sentencing

31The principles of sentencing are now largely codified in sections 718, 718.1, 718.01, 718.04 and 718.1 and 718.2 of the Criminal Code. Section 718.2 also sets out a number of circumstances which may aggravate the circumstances relating to the offence or the offender, none of which appear to apply in the present case.

Aggravating Circumstances

32The aggravating circumstances include the following:

• The victim was completely vulnerable at the time of the attack. The surveillance video shows that after initially trying to flee from Mr. Navarathinam and Mr. Shanmugalingam, Mr. Jesuthasan gave up and collapsed to the ground, lifting his arms up in a position of surrender. Mr. Navarathinam paused a moment and then repeatedly slashed Mr. Jesuthasan in the head.

• The victim was also vulnerable due to his intoxicated state.

• Mr. Navarathinam has a prior record, including for offences of assault and assault with a weapon.

• Mr. Navarathinam was aware from personal experience that alcohol and violence were a toxic mix for him. He also took mandatory education, which included “how to identify warning signs, high risk situations, and options to consider should he be at risk of a relapse”. Despite this experience, and this training, Mr. Navarathinam told Dr. Gojer that he was angry at the victim, brought the victim to the apartment of the person whom Mr. Navarathinam believed the victim had mistreated or harmed, and then embarked on some serious drinking. While I appreciate that Mr. Navarathinam was in the grips of a powerful addiction, he created a situation he knew was toxic and posed a significant risk of violence.

Mitigating Circumstances

33The mitigating circumstances include the following:

• The weapon used in the attack was an ordinary kitchen implement that could be lawfully possessed in different circumstances.

• Mr. Navarathinam’s time in pre-trial custody was particularly harsh. He had to sleep on the floor for significant periods because three men were lodged in a two-man cell; he was locked down for periods of time; he was bullied by other inmates. Perhaps most significantly, he could not speak English which prevented him from participating in whatever limited programming was available, and made him even more isolated and marginalized.

• Mr. Navarathinam has been on strict conditions of release for almost four years (2 years, 8 months and 24 days on house arrest and almost 1 year on a curfew bail).

• Apart from failing to comply with the conditions of his initial release (Mr. Navarathinam was initially not actually living with his surety as his release required), Mr. Navarathinam has stayed out of trouble. He also reports that he has stopped drinking. This is a profound accomplishment. I agree with Mr. George that it is a very significant mitigating circumstance and a tangible reflection of remorse.

What is a fit sentence in all the circumstances?

34The Crown has provided me with a number of sentencing cases from this court with similarities to the instant case which support a sentence in the 4-5 year range:

• A 4 year sentence was imposed in R. v. Silva, 2016 ONSC 2254 for aggravated assault of a relative (by marriage) with a machete following a trial. The attack “was vicious, coming from behind, and bore the marks of premeditation”. Mr. Silva was 30 years old at the time of the assault, with a dated prior record for four convictions, two of which were assaults. His longest prior sentence was 15 days and 2 years probation in 2002. He had a positive PSR. He had a solid employment record, no issue with substance abuse, and the attack was described as out of character, and he expressed regret.

• A 4 year sentence was imposed in R. v. Rowe, 2020 ONSC 6667 for aggravated assault of the accused’s estranged wife following a trial. The attack was unanticipated and caused a “40-stitch wound to the right side of her face”. It did not appear premeditated. The attack caused a significant scar and had a lasting emotional effect on the victim and on their daughter. Mr. Rowe was 33 at the time of the assault, was hard-working (he held down 3 jobs) and was a good father.

• A 5 year sentence was imposed in R. v. Power, 2018 ONSC 598 for aggravated assault of a neighbor in an apartment building following a trial. Mr. Power came up behind the victim as the victim was entering his apartment and stabbed him twice in the left side of his back, causing two deep wounds, one penetrating 3-5 centimetres, including the chest wall; the other went even deeper, penetrating the pleura, which envelops the lungs, causing bleeding into the chest cavaity and coming within millimetres of penetrating the lungs. It was intentional, unexpected and “entirely unprovoked”. Mr. Power was just short of 35 at the time of sentencing. He was Aboriginal and was abused and unloved growing up. He had a significant criminal record, including for offences of violence, and had been to the penitentiary before. But for Mr. Power’s unfortunate background, and motive to change, the sentence would have been 7 years.

• A 4 1/2 year sentence was imposed in R. v. Haly, 2012, ONSC 2302 for aggravated assault of the manager of a gym following a guilty plea. Mr. Haly repeatedly stabbed the victim with a hunting knife while he was working out. Fortunately, others intervened preventing the attack from continuing. All the wounds were soft tissue injuries but took months to heal and had “tremendous” emotional impact. The attack was “completely unprovoked”. Mr. Haly was 28 at the time of sentencing and did not have a criminal record. He suffered from depression and substance abuse.

• A 3 year sentence in R. v. Helpert, 2013 ONSC 7469 for aggravated assault of a stranger (a woman who happened to comment on the manner Mr. Helpert parked his car) following a guilty glea. Mr. Helpert took a two-handed swing with a machete at the back of the victim’s head. Fortunately, most of the blow was absorbed by the wall behind the victim, but it still caused a 6 inch wound from the top of her left ear to the crown on the left side of her head. The wound took about 3 months to heal, caused her to miss work and suffer serious depression. Mr. Helpert was very intoxicated at the time (he had breathalyzers readings of 169 and 163 after the offence) and on strong pain-medication, but the sentencing judge noted that “although the combination of drugs and alcohol played a role, the accused’s conduct was not altogether spontaneous”. Mr. Helpert was 59 at the time of the offence and 63 at the time of sentencing. His only criminal conviction was for impaired driving in 1989. He had no history of assaultive behavior. He had a work-related accident in 1991 that resulted in chronic pain. He also suffered from depression and anxiety. He immediately acknowledged his wrong-doing and expressed remorse.

35Defence counsel have provided me with an equally long list of cases in support of a short sentence of custody no greater than the time already served in this case:

• A sentence of 6 months in R. v. Anderson, 2020 ONCJ 53 (Ottawa) for aggravated assault of another driver in the context of a road rage incident following a trial. Both drivers got out of their cars and the accused shoved the 66 year old victim away, causing her to fall and fracture her pelvis and pubic bone. The victim was recovering from cancer at the time of the altercation and she had to attend her appointments in a wheelchair. The injuries significantly decreased her mobility and left her isolated and depressed. Ms. Anderson was 24 at the time of the offence with a minor record (possession of marijuana and breach of a bail undertaking). She had a difficult up-bringing, with both her parents abusing substances and violence in the home. After leaving home she became involved in an abusive relationship herself, and abused alcohol and marijuana.

• A sentence of 90 days intermittent in R. v. Gugaruban, 2013 ONSC 3243 (Toronto) for aggravated assault of a close friend in the context of a family dispute (punch to face breaking the orbital bone) following a trial. The trial judge concluded that Mr. Gugaruban reasonably believed that he was under assault but that he used more force than was necessary in the circumstances. Mr. Gugaruban was 21 at the time of the offence, married, employed in his field as a mechanic, and did not have a criminal record. He was deeply remorseful and apologized to the victim.

• A suspended sentence in R. v. Hunter, 2015 ONSC 325 (northern Ontario) for aggravated assault after a trial. The victim was trying to get the intoxicated accused to leave a party in the course of which the accused smashed a beer bottle over the victim’s head causing a significant scar. The accused had a difficult upbringing, with his mother struggling with addiction and mental health issues. The accused struggled with substance abuse but had remained steadily employed and was in a long-term relationship, and supported his partner and her children (who he viewed as his children). He had a criminal record including assault. He turned his life around since the assault.

• A suspended sentence in R. v. Shaheheraghi, 2017 ONSC 574 for aggravated assault of an intoxicated patron while being evicted following a trial. The accused punched the victim multiple times and smashed his head into a glass door while evicting him, causing damage to his head and face and a cut near his eye that severed a tear duct. The accused had no criminal record. He was well-educated and had a supportive family. He was steadily employed, managing a night club, and had started his own security company.

• A 90-day intermittent sentence for both accused in R. v. Smart and Camilleri, 2013 ONSC 600 for aggravated assault of an acquaintance following a trial. The accused attacked the victim on a dance floor as a result of a prior grudge, fracturing his jaw. Smart was 24 at the time of the offence. He did not have a record and had a solid work record. Camilleri was 26 at the time of the offence. He had a criminal record, but not for violence. He too had a solid work record. Both accused demonstrated an appreciation of and empathy toward the victim.

• A sentence of one year in R. v. Taylor, 2019 ONSC 5187 for aggravated assault following a guilty plea. After a night of drinking the victim came upon the accused engaged in sexual activity; he offered to join. When the couple tried to leave, he followed them until the accused punched and kicked the victim in the face causing a broken jaw, teeth, nose and orbital bones. The accused called 911. It was agreed that the accused felt threatened but that his actions went beyond what was reasonable. The accused had an on-going issue with alcohol and opioids. He had a criminal record for driving over 80 and dangerous driving causing bodily harm.

• A sentence of 6 months in R. v. Yon, 2014 ONCJ 741 for aggravated assault of his wife following a guilty plea. The accused wanted sex and his wife did not and kicked him in the genitals. He became enraged and beat her in the head, face and chest causing bruising and partial hearing loss in one ear. There was no history of violence in the relationship. The accused was 52 at the time of sentencing and had no criminal record. He was a refugee from Cambodia. He had an excellent work history but struggled with a gambling addiction. He was a good father. He had the support of his church. He was remorseful and always expressed a desire to plead guilty. He engaged in anger management counselling of his own volition.

36I agree with the Crown that the circumstances of this offence situate the case at the high end of the range articulated by Justice Code and repeatedly approved by the Court of Appeal. The cases relied on by the defence all arise out of, or have aspects of, a consensual altercation characteristic of the mid-range described by Justice Code. In contrast, this case involves a vicious unexplained attack on a completely defenceless victim. The attack is not spontaneous. Not only are there hints of planning, as I will explain, but the accused chases the victim over a number of floors in their apartment building and delivers blows when the victim is lying prostrate on the ground in a position of submission. Even after delivering the blows, the accused and Mr. Shanmugalingam continue to stand over the victim in a threatening manner. The victim was seriously injured in the attack requiring emergency treatment and hospitalization. Ironically, just as the attack seemed to prompt the accused to begin to get his life back on track, it seemed to prompt the unravelling of the victim’s life in Canada. By the time of the trial the victim had been deported back to Sri Lanka. In short, the circumstances of the offence are very serious and wholly characteristic of cases at the top of the range.

37Mr. Navarathinam’s personal circumstances are also serious. He has a related record for assault and assault with a weapon. In addition, he knew that alcohol was associated with violence for him. Despite this, he brought the target of his anger (the victim) into a private apartment and drank heavily. He acknowledged to Dr. Gojer that he was angry at the victim (the surveillance video suggests that furious would be a better description), and that he brought the victim to the apartment of the person Mr. Navarathinam believed the victim had aggrieved. Mr. Navarathinam then drank heavily. The surveillance video shows him leaving and returning with what appears to be beer. He appears slightly wobbly as he does so. He did not appear at all wobbly during his initial confrontation of Mr. Jesuthasan. To the contrary, he appeared to be searching for Mr. Jesuthasan with considerable focus. I recognize that alcoholism is a powerful addiction, but Mr. Navarathinam’s behaviour here seemed almost planned or premeditated, as if he was using the alcohol to gird himself for the attack he was going to make. I cannot find that this was the case to the required standard of proof beyond a reasonable doubt. But I do find that Mr. Navarathinam did some serious drinking in circumstances that he knew from experience could lead to violence.

38At that same time, there are some very significant mitigating circumstances, and collateral consequences, that bring the sentence down to the bottom of the relevant range (i.e. the bottom of the high end of the range which I have found is the relevant range in this case). I will explain what these are but note at the outset that they cannot bring the sentence below what is appropriate in light of the circumstances of the offence and the offender. In other words, they factor into what is a fit sentence in all the circumstances, but cannot justify reducing the sentence to a point where it is not proportionate to the gravity of the offence or the blameworthiness of the offender: R. v. Suter, 2018 SCC 34; R. v. Morgan, 2020 ONCA 279; R. v. Marshall, 2021 ONCA 344.

39Mr. Navarathinam’s time in pre-trial custody was particularly harsh. There were three men in his two-man cell for almost a quarter of his time in custody (55 of 233 nights). He testified that he had to sleep on the floor when this happened. He was bullied by other inmates, who controlled the showers and telephones; he was beaten by his cell mates when he snored. The cell stank as during the night the bathrooms could not be accessed. Perhaps worst of all, the fact that Mr. Navarathinam cannot speak English made him particularly isolated and marginalized. I note that Mr. Navarathinam’s language skills are so limited that when he was affirmed to testify at the sentencing hearing he was unable to spell his own name. Defence counsel seeks a “credit” of two months for the harsh conditions of pre-trial custody. Justice Doherty recently explained that harsh conditions of custody are most accurately seen as a collateral consequence having a mitigating effect on sentence: Marshall, paras.50-53. This is how I consider them.

40Going forward, Mr. Navarathinam’s time in custody will be particularly harsh because he does not speak English. While I am optimistic that he will be given some English training in custody, the reality is that most programming will be unavailable to him because he does not speak English. He will be isolated and marginalized. His time will be particularly harsh as a result. Again, I take this into consideration as a mitigating circumstance.

41As I understand it, the Immigration and Refugee Protection Act provides that a non-citizen who is either convicted of an offence punishable by a maximum term of imprisonment of at least ten years, or sentenced to a term of imprisonment of more than 6 months, is inadmissible to Canada on the grounds of serious criminality and subject to deportation: Seerattan, at para.38. Both routes to inadmissibility are engaged here. Aggravated assault is punishable by a maximum sentence of 14 years, engaging the first route. A sentence under 6 months would be manifestly unfit in the circumstances of this case, engaging the second route. In addition, Mr. Navarathinam has already been ordered deported from Canada due to serious criminality. Immigration consequences cannot justify a sentence that would not be proportionate to the circumstances of the offence and the offender. Nonetheless, I recognize that the potential immigration consequences of conviction and sentence may render the impact of whatever sentence I impose harsher on Mr. Navarathinam. I take this into account as a mitigating circumstance: R. v. Pham, 2013 SCC 15 at paras.19-22.

42Certain deportation upon completing a sentence may reduce what sentence is otherwise required. In R. v. Critton, [2002] O.J. No. 2594 (S.C.J.) at para. 86 Justice Hill noted that certain deportation may bring a sentence down in the relevant range as the risk of incomplete rehabilitation on release is not one imposed on the Canadian people, and Canada will be spared the expense of incarceration upon deportation. However, defence counsel did not seek to rely on this principle. Instead he argued that Mr. Navarathinam’s status as a Conventional Refugee may allow for greater discretion in whether Mr. Navarathinam must be deported.

43In addition, the COVID-19 pandemic is still with us. Vaccines are rolling out quickly, with the majority of the population having received a first dose, and second doses beginning in earnest. I am optimistic that the worst of the pandemic is behind us. But at present we are still in the midst of it. Conditions of custody remain harsher because of greater restrictions aimed at preventing infection. Further, despite precautions, the reality of communal living is that inmates are at greater risk of contracting the virus. Even if the risk never manifests, it exacts a psychological toll, especially as inmates have little ability to control exposure: R. v. Hearns, 2020 ONSC 2365. I am satisfied that COVID-19 is a collateral consequence which will make whatever sentence I impose harsher, at least for the near future, and must factor into what is a fit sentence in all the circumstances.

44Most importantly, Mr. Navarathinam appears to have gotten control of his alcohol abuse. He has been sober in the over four years since the offence. And he has stayed out of trouble. I agree with Mr. George that this is a tangible expression of remorse. It shows rehabilitation must be given emphasis, notwithstanding the objective seriousness of the offence. It has a powerful mitigating effect on sentence.

45When I consider all these mitigating circumstances and collateral consequences, I find that they bring the sentence down to the bottom of the relevant range (the top tier described by Justice Code): four years.

46The sentence for possession of a weapon for a purpose dangerous arises out of the same transaction and should be concurrent. I believe that 12 months concurrent is appropriate in this case.

Downes Credit

47Mr. Navarathinam has been subject to strict conditions of pre-trial release for almost four years. Beyond COVID-19, which, I believe, affected a planned trial for the spring of 2020, I have no explanation for why the case took so long. All I know is that Mr. Navarathinam’s time spent waiting for trial can be broken down into the following periods:

• Mr. Navarathinam was arrested and detained in custody on the morning of the offence, January 29, 2017. He remained in custody until March 20, 2017, when he was released on a surety bail.

• Mr. Navarathinam was re-arrested on April 5, 2017, because he was not living with his surety as required. He remained in custody until October 6, 2017, when he was released on another surety bail, this one involving house arrest.

• Mr. Navarathinam remained under house arrest until June 29, 2020, when his bail was varied, on consent, to delete the condition of house arrest and replace it with a curfew.

48The Court of Appeal has been clear that time spent under onerous conditions of pre-sentence release is a relevant mitigating circumstance, which “should”¹ be considered by the sentencing judge in determining the appropriate sentence: R. v. Downes, (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321; R. v. Ijam, 2007 ONCA 597; R. v. Yue, 2007 ONCA, 598. The mitigating circumstance is engaged by an offender showing that the conditions of pre-sentence custody have had an impact on their life. Where engaged, courts have consistently given concrete effect to the mitigating circumstance in the form of a “credit”. Justice Rosenberg explained that the amount of credit lies within the discretion of the trial judge, and will “depend on a number of factors, like the time spent on bail under house arrest; the stringency of the conditions; their impact on the offender’s liberty; the ability of the offender to carry on normal relationships, employment and activity: Downes, paras.34-37; R. v. Place, 2020 ONCA 546, at para. 20; R. v. Joseph, 2020 ONCA 733 at para. 108.

49In Marshall, Justice Doherty affirmed that a mitigating circumstance is conceptionally not a “deduction” from sentence, but rather one of the totality of factors to be considered in crafting an appropriate sentence; no single factor can justify an unfit sentence: Marshall, para.52; see also R. v. Suter, (2018), SCC 34. Nonetheless Justice Doherty was careful to affirm that it is “not necessarily inappropriate” to quantify a credit for onerous conditions of pre-trial custody (the “Duncan” credit), provided this does not “take on an unwarranted significance in fixing the ultimate sentence imposed” and result in an unfit sentence: Marshall, para.53.

50I am satisfied that the almost 4 years that Mr. Navarathinam spent under very onerous conditions of pre-sentence release had a significant impact on him and amounts to a powerful mitigating circumstance in this case. Mr. Navarathinam has been under house arrest for almost three years. While he has made good use of this time – addressing his alcoholism and removing himself from his negative peer group, the conditions have been punitive. His inability to work flowed from losing his work permit, due to prior criminality, but I accept that the onerous conditions prevented him from picking up odd jobs. He has existed at a subsistence level, surviving on welfare. This made it difficult, if not impossible, for him to obtain the counselling he needs. He was not even been able to go out. While the conditions of release were varied to permit him to go out with his surety when COVID-19 hit, he has been reluctant to impose on his surety. There can be no question that his autonomy and ability to live and enjoy life has been sharply curtailed by the onerous conditions of release.

51In the particular circumstances of this case, I would give specific recognition to the mitigating effect of the onerous conditions of pre-sentence custody in the form of the 11 month “credit” requested by defence counsel. While this will bring the effective sentence below the bottom of the relevant range (again, 4 years for the most serious form of aggravated assault), I do not believe that this approach would so skew the calculation that the resulting sentence is unfit or inappropriate in all the circumstances.

52In taking this approach, I am mindful that the conditions of pre-sentence release in this case were punitive. It is well-established that a house arrest conditional sentence, even with liberal exceptions for work and school, is punitive: R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.) at para.103. Here Mr. Navarathinam was on complete house arrest, with no exceptions, for almost three years. When COVID-19 hit, this was softened to permit him to be out during the day with his surety, but he was reluctant to bother her, and everyone was shut in due to the pandemic. The fact that pre-sentence custody is punitive is one of the well-established reasons sentencing judges are required to give credit for it: s.718(2) of the Criminal Code; R. v. Summers, 2014 SCC 26; R. v. W. (L.W.) (2000), 2000 SCC 18, 143 C.C.C. (3d) 129 (S.C.C.); R. v. Rezaie (1996), 1996 CanLII 1241 (ON CA), 112 C.C.C. (3d) 97 (Ont.C.A.). But there is no equivalent requirement for onerous conditions of pre-sentence release. In the circumstances of this case, I fear that unless I specifically recognize the time spent under very onerous conditions of pre-sentence release with a credit, the punitive effect it has had on Mr. Navarathinam would not be adequately recognized in my sentence.

53In all the circumstances, I credit Mr. Navarathinam with 11 months for the almost four years he spent under extremely onerous conditions of pre-sentence release.

Summers credit

54Counsel agree that Mr. Navarathinam spent 233 nights in pre-sentence custody. I subtract 20 days from that total to reflect time “used up” in relation to the sentence for fail to comply. This leaves 213 days of pre-sentence custody x 1.5 = 320 days or 10 months and 20 days to deduct for pre-sentence custody.

Ancillary Orders

55A DNA order under 487.051 is mandatory, as is a ten-year weapons prohibition under s.109.

56There will be no victim fine surcharge. Mr. Navarathinam lives on social assistance.

Conclusion

57The sentence on aggravated assault is 4 years or 48 months. The sentence for possession of a weapon for a dangerous purpose is 12 months concurrent.

58Mr. Navarathinam will be given credit of 11 months to reflect the punitive effect of the onerous conditions of pre-sentence release. A further period of 10 months and 20 days will be deducted for the time spent in pre-trial custody, leaving a sentence of 26 months and 10 days to be served.

Gillian Roberts, J.

Footnotes

1. 1The Court of Appeal originally said “must” in Downes, but shortly after a majority of the five member panel in Ijam softened this to “should”, explaining that onerous conditions of pre-sentence release need not be considered in every case, depending on the circumstances.